Isaacson v. Central Coal & Coke Co.

• Decision Date: 07 December 1931
• Parties: E. M. ISAACSON, GUARDIAN, ETC., RESPONDENT, v. CENTRAL COAL & COKE COMPANY, APPELLANT
• Court: Kansas Court of Appeals

44 S.W.2d 232

226 Mo.App. 644

E. M. ISAACSON, GUARDIAN, ETC., RESPONDENT, v. CENTRAL COAL & COKE COMPANY, APPELLANT

Court of Appeals of Missouri, Kansas City

December 7, 1931

Appeal from the Circuit Court of Macon County.--Hon. Vernon L Drain, Judge.

REVERSED AND REMANDED (with directions).

Reversed and remanded.

Franklin & Franklin and R. S. Kathan for respondent.

Walter C. Goodson and F. H. Oliver for appellant.

OPINION

TRIMBLE P. J.

This is an appeal from the judgment of the circuit court affirming an award of the Missouri Workmen's Compensation Commission in favor of the guardian of Mary Ellen Isaacson, Grace Martha Isaacson and Joseph Benjamin Isaacson, minor children of Alford Isaacson, deceased, employee, and against the Central Coal & Coke Company, employer. Isaacson met his death while working in defendant's coal mine by reason of a fall of rock therein. He left the three children above named, aged seventeen, fourteen and ten years respectively. A claim for compensation was filed before the Commission, and a hearing was had before one of the commissioners as referee and he ruled that "children of the deceased under the age of eighteen years are conclusively presumed to be total dependents under section 21, Workmen's Compensation Act, Laws of 1927 (now sec. 3319, R. S. 1929), and are, therefore, entitled to the full death benefit." The referee found that the employee's weekly wages were $ 15.53 and the weekly compensation was $ 10.29; and on July 14, 1930, awarded compensation as follows:

Burial Expenses,

$ 150.00

300 weeks at $ 10.29 per week,

3087.00

Total,

$ 3237.00

Paid to date by employer,

Nothing

Balance due dependents,

$ 3237.00

Application for review was filed by the employer, and the Commission, in its review award on August 11, 1930, found that the employee's weekly wage was $ 15.53, two-thirds of which is $ 10.36 instead of $ 10.29, and that the amount of compensation for 300 weeks at $ 10.36 was $ 3108, which with $ 150 for burial expenses, made a total of $ 3258, but that the employer had paid the $ 150 for burial expenses, leaving due dependents $ 3108 instead of $ 3257; and ordered that "as so modified, award dated July 14, is hereby affirmed."

Defendant employer thereupon appealed to the circuit court, the only contention between the parties being whether the children all of them under eighteen years and living with their mother apart from the deceased parent, from whom the mother had been divorced, should be conclusively presumed to be totally dependent.

The employee father was killed April 30, 1930. The parents were married June 11, 1906, and lived together until November 17, 1919. On February 9, 1930, the wife was awarded a decree of divorce with care, custody and control of the children, together with a judgment for alimony in gross in the sum of $ 2500 to be paid in installments of $ 500, which judgment was satisfied in full by the husband paying the last installment February 11, 1924.

On September 13, 1924, the wife filed an application to have the decree of divorce modified so as to provide an allowance against the father for the support of the children, which application was denied by the circuit court. From the date of the rendition of the divorce decree, the children have lived and are now living with their mother at Bucklin, Missouri, apart from their father, and consequently were not living with him at the time of his accident and death. Are they to be conclusively presumed to be total dependents under section 3319, Revised Statutes 1929?

The pertinent part of said section 3319 is as follows:

"The following persons shall be conclusively presumed to be totally dependent for support on a deceased employee in the following order, to-wit:

"1 . . . (Relating to a wife upon a husband or an...